SOVEREIGNTY IN THE 

AMERICAN REVOLUTION: AN 

HISTORICAL STUDY 



By 



CLAUDE H. VAN TYNE 



REPRINTED FROM THE 



gimniatt §ii^t0^:iat §mm 



\ 



Vol. X 



^l., No. 



APRIL, 1907 



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[Keprinleil (rmn Tiu Amkrua.n I Iistokk ai. kiviKW, Vol. MI., No. 3, April, 1907.] 



SOVEREIGNTY IN THE AMERICAN REVOLUTION: 
AN HISTORICAL STUDY 

It is the purpose of this paper to learn, if possible, from con- 
temporary material just what ideas were in men's minds during the 
American Revolution when they thought of Congress, of the Union, 
of the states and their governments, of the Confederation, and of 
independence, and, further, to learn their true reasons for obeying 
Congress or their state governments. Then with some definite con- 
clusions based upon facts and not general impressions, I wish to 
examine again the much-mooted question as to whether there was 
an American national state in the Revolution, and whether Congress 
or the state governments exercised the sovereign power. As we 
all know, this question derives its importance from the long and 
bitter historical controversy over state sovereignty, nullification, and 
secession. Personally, I believe that the solution, either in favor 
of state sovereignty or of Congressional sovereignty during the 
Revolution, has little or no bearing in establishing the legal right 
of nullification or secession,^ but so many able writers- have laid 
such stress on proving the Continental Congress sovereign that the 
truth is worth a search. 

Since the earliest time claimed for the existence of an American 
national state is the time of the assembling of the First Continental 
Congress, I begin with a consideration of that. Story speaks^ of 
this Congress as coming from " the people, acting directly in their 
primary, sovereign capacity, and without the intervention of the 
functionaries, to whom the ordinary powers of government were 
delegated ". The facts are that delegates from two colonies * were 
chosen by the legislatures,'^ elected by the people in the ordinary 

' That question can be settled by studying what the Constitutional Conven- 
tion thought it had done and actually did, and to what the people of the states 
or the people of the nation (as one pleases) bound themselves when they accepted 
a Constitution which provided that the Constitution and laws made in accordance 
therewith should be the law of the land, enforcible in the courts, and that the 
government thereby established might operate directly upon every individual. 
By accepting this they left themselves nothing but the right of revolution. 

' Some of these are Lieber, Story, Pomeroy, Hare, Bancroft, Lincoln, Von 
Hoist. Fiske. Burgess. 

* Joseph Story, Commentariei, fourth edition, I. 140. 
Rhode Island and Pennsylvania. 

'Force, American Archives, fourth series, I. 416, 607. 

(529) 



530 C. H. Van Tyne 

way for ordinary purposes of law-making. The delegates from 
Massachusetts, a third colony, were chosen by the lower house duly 
elected, with no special instructions to choose delegates to the Con- 
tinental Congress.' Georgia was not represented at all, and in only 
six colonies were there special conventions or provincial congresses 
of the nature Story imagines them all to have been. 

He adds to this false premise the assertion, " The Congress thus 
assembled exercised de facto and dc jure a sovereign authority ; not 
as the delegated agents of the governments de facto of the colonies, 
but in virtue of original powers derived from the people."- Such 
a statement could come only from one who had not read the instruc- 
tions of the delegates, or the journal of this Congress's proceedings. 
Four delegations were instructed to procure the harmony and union 
of the empire,' to restore mutual confidence, or to establish the union 
with Great Britain. Three were instructed to repair the breach 
made in American rights, to preserve American liberty, or to accom- 
plish some similar end. Two were to get a repeal of the obnoxious 
acts, or determine on prudent or lawful measures of redress. Three 
were simply to attend Congress or " to consult to advance the good 
of the colonies ".* North Carolina alone bound her inhabitants in 
honor to obey the acts of the Congress to which she was sending 
delegates.^ When the Congress met, it restricted its proceedings 
absolutely to statements of the grievances and appeals for relief. 
The delegates in no way went beyond their instructions, as a care- 
ful examination of their journal will show." Conservative feelings 
ruled, and the restoration of union and harmony with Great Britain 
was the prevalent desire. It is manifestly wrong, therefore, to look 
at the First Continental Congress as coming together because of a 
national feeling, because of a desire to form a national state, and 
therefore to ascribe to it governmental powers. It was called be- 
cause a joint appeal for relief would naturally be more effective than 
any single petition. The colonies sending delegates to the First Con- 
tinental Congress no more coalesced into a national state by that 

' Force, American Archives, fourth series, I. 421. 

2 Story, Comnicntaries, fourth ed., I. 140. Burgess too, Political Science 
and Constitutional Laze, I. 100, says that this Congress "was the first organization 
of the American state." From the first moment of its existence " there was a 
sovereignty, a state, not in idea simply, or upon paper, but in fact and in organ- 
ization." 

'See Journals of Congress, I. 15-24. My references to the Journals, through- 
out the article, are to the edition by Mr. W. C. Ford. 

*Jbid., 15-30. 

5 Ibid., 30. 

"This is Mr. Ford's opinion (ibid., 6) with which any candid reader of the 
journal must agree. 



view we 



Sovereignty in the American Revolution 531 

act ^ than did the colonies which sent delegates to the Albany Con- 
gress or the Stamp Act Congress. 

But let us give those who argue along this line the benefit of a 
doubt, and assume that it was the Second Continental Congress 
which in their opinion exercised dc facto and de jure a sovereign 
authority. 

Before coming to any conclusion as to the right or wrong of this 

w we must examine in a historical spirit the question what 
powers the constituents of the delegations meant to give them, what 
the Continental Congress thought of its own powers at any time 
during its existence, what the people of the colonies thought, and 
to what extent they recognized by their actions the sovereign au- 
thority attributed to Congress by Story and others. 

Three of the delegations to the Second Congress were chosen by 
the regular legislatures,^ three by the lower houses of the legisla- 
tures,= and seven by provincial congresses or conventions of town 
or county delegates.^ Of these delegations three were merely to 
represent, or attend, meet, and report,^ two to join, consult, 'and 
advise,^ six to concert and agree or determine upon," while Georgia's 
delegates were " To do, transact, join and concur with the several 
Delegates".^ Maryland and North Carolina, from the f^rst and 
Georgia and New Jersey^ later, bound the state and people to abide 
by the resolutions of Congress,'' though doubtless all felt more or 
less this obligation. 

The delegates were to exercise these powers for the purpose of 
" restoring harmony " or " accommodating the unhappy differences " 
with Great Britain,"" to obtain a " redress of American grievances " 
a " re-establishment of American rights," or " a repeal of offensive 
acts '." Some delegations were " to preserve and defend our Rights 

■ Delaware, Rhode Island, and Pennsylvania. See Md., II., Instructions to 
Delegates. 

' South Carolina, New Jersey, and Connecticut. 

' Georgia was not represented at first, but later a provincial congress sent 
delegates. 

*New Jersey, Pennsylvania, and Virginia. 
" Connecticut and Rhode Island. 

= Massachusetts, South Carolina, New Hampshire, Maryland, Delaware (also 
to report"), and New York. See also Force, American Archives, fourth series 
II. 379. 

'Not sent until September 13, 1775; see Jourimh of Congress. 
'February 14, 1776. 

'For all the above facts see Journals of Congress. II., Instructions to 
Delegates. 

"So in the cases of South Carolina, New York-, Delaware, Massachusetts, 
and Georgia. 

"Rhode Island, South Carolina, Maryland, Pennsylvania, New Hampshire, 
and Massachusetts. 

AM. HIST. REV., VOL. .\n. — 35. 



532 C. H. T^an Tync 

and liberties"' or " for advancing tlie best Good of the Colonies,''^ 
and three were instructed to no definite purpose.^ Although eight 
of these colonies sent new instructions before January, 1776'' (and 
this date is important, as will be presently shown), yet only two 
changed the character of their instructions, Maryland leaving out 
the binding clause,'' and Connecticut making the object sought, de- 
fense, security, and the preservation of rights. It is absurd to say that 
all these legislatures and conventions were hypocritical, saying what 
they did not mean, and if we seek honestly to know the wishes of 
the majorities in each representative body we shall examine these 
instructions, remembering, moreover, that these bodies were for the 
most part representative not of all the people,* but of the most rad- 
ical, those who would be the first to think of independence and the 
formation of a new state. 

Remembering these instructions and the length of time they 
remained unchanged, let us examine the next point made by Justice 
Story and others in his wake. He sa^'s:" "The Congress of 1775 
accordingly assumed at once the exercise of some of the highest 
functions of sovereignty. They took measures for national defence 
and resistance ", raised an army and navy, established a post-office, 
raised money, emitted bills of credit, and " contracted debts upon 
national account," authorized captures and condemnation of prizes. 
Let us see what Congress thought and what men of that time 
thought of the nature of these acts, for this idea in men's minds is 
of importance. 

If the instructions to Congress meant anything, the delegates 
came together unauthorized by the people to act as a national gov- 
ernment. They were to keep the councils of the colonies united 
while the English government was being forced to yield what men 
thought their rights* In attempting to accomplish this end open 
war developed," and the Congress gradually did assume all these 

1 Georgia, North Carolina, and Rhode Island. 

2 Connecticut. 

' Virginia, North Carolina, and New Jersey. 

'Delaware, October 21, 1775; Maryland, December 9, 1775; New Hamp- 
shire, August 23, 1775; North Carolina, September 8, 1775; Massachusetts, 
November 10, 1775; Connecticut, October, 1775; Pennsylvania, November 3, 

1775- 

^Journals of Congress, III. 441; IV. 58. 

° All of their acts were repudiated by the Loyalists, who were no insignificant 
part of the population. 

' Story, Commentaries, fourth ed., I. 151-152. 

^Journals of Congress, IV. 136, last paragraph. 

^ It must be remembered, however, that it was the New England colonies 
that began the war, and that the other colonies assembled in Congress were 
most reluctantly dragged into the struggle. 



Sovereig)ity in the Aiucrican Rcvolutioi 533 

powers which Story enumerates, but the striking thing is that it did 
all these things at a time when' the majority of Congress would 
vote repeatedly for addresses, to the king, the inhabitants of Great 
Britain, the people of Ireland and of Jamaica, which asserted, 
" We have not raised Armies with ambitious Designs of separating 
from Great Britain, and establishing independent States."- and 
assured the king that they most ardently wished the former harmony 
with Great Britain, vowing their allegiance to him' and that they 
would cheerfully bleed in defense of him in a righteous cause. As 
late as October in 1775, reconciliation is a common sentiment^ and 
the royal post-routes were still in operation.-'^ Even late as Jan- 
uary 15. 1776. Samuel Adams could not head off a motion to explain 
to the people that reconciliation was the desire of Congress.^ In 
the middle of February, 1776, James Wilson argued with great 
sincerity that many of the steps thus far taken by Congress could 
be accounted for rationally only upon the supposition that their 
object was the defense and re-establishment of their rights, and 
could not be so accounted for if their aim was an independent 
empire.'' I do not believe the majority of Congress to have been 
hypocrites drawing long faces and pretending a loyalty they did not 
feel. As James Wilson said, " Those Protestations of Lovalty and 
Expressions of Attachment ought, by every Rule of Candour, to be 
presumed to be sincere, unless Proofs evincing their Insincerity 

' iVfli'.v- — Congress recommends (July i8, 1775) the states to establish. 
Journals, II. 189. First Continental vessel, October 13, 1775. Fleet provided 
October 30, I775- Zubly seconds motion for fleet October 7, 1775, but the 
previous day asserts that the man who would suggest independence would be 
torn to pieces like De Witt. Journals, III. 483. 

Indian Commissioners appointed July 12, 1775. 

Post-OfUce. — A committee to estabhsh post-routes appointed May 29, 1775, 
and Postmaster-General decided upon July 26 ; but side by side with the Conti- 
nental routes, the British postal system existed undisturbed as late as October 
7, 1775 ; see Journals of Congress on those dates. 

Treasury, — Congress borrows for Continental uses June 3. 1775, uses money 
first on June 10, and pledges the twelve colonies for redemption of bills of credit 
June 22, 1775. 

Army. — First provision was June 14. i7"5- General decided upon, June 15. 
Organization planned June 16, 1775. Suggestion comes from Massachusetts. 
Jouruals, II. 78. 

^ Ibid., 155. July 6, 1775, ibid., IV. 143. See also Writings of Jefferson, 
ed. Ford, I. 482 : Force, American Archives, fourth series, III. 794, 795. 

'July 8, 1775. Journals, II. 160: July 28. 1775, ibid., 139, 155, 198, 217; IV. 
137. I42. 

* See ibid., III. 481, 482, 489. Life of Belknaf', 96-97. 

^Journals, III. 488. 

'Ibid., IV. 57: also February 13, 1776, ibid., 137. 

^ See his convincing argument on this subject, ibid., 142-143. 



53-1 C. II. J'a/i Tyiie 

can be drawn from the Conduct of those who used them."' If 
they were honest it seems axiomatic that the members of the Con- 
tinental Congress could not regard themselves, or be regarded by 
the men who read their papers, as the sovereign head of a united 
people, when they and the people wished to be loyal subjects of the 
British king, and acknowledged his sovereignty. 

In the very " Declaration on Taking Arms,"- Congress showed 
the desire and expectation of reconciliation. Just as non-importa- 
tion and non-exportation were not illegal in the colonial view, but a 
peaceful means of forcing the repeal of obnoxious laws,^ so armies 
and loyalty were not incompatible.^ There is no doubt, as Trevelyaii 
suggests, that many American revolutionists were like the Puritan 
country gentlemen at the beginning of the struggle against Charles I., 
who held that to bear arms against the Crown was consistent with 
the dut}- of a loyal subject ; and loyal subjects they were bound to 
remain.'' The attitude of men to the warlike measures is perhaps 
most strikingly shown in the seemingly paradoxical position of 
Zubly, Georgia's delegate (October 6, 7, 1775), who seconded a 
motion for preparing a plan for an American fleet, though on the 
previous day he had said that if any one proposed to break off from 
Great Britain, he would inform his constituents. "I apprehend", 
he added, " the man who should propose it would be torn to pieces 
like DeWitt." '' The idea of loyalty to the British king and a co- 
existent desire for an American national state are incompatible, 
therefore if Congress was doing seemingly sovereign acts, it was 
merely in the capacity of a party committee" leading a rebellious 
faction in the empire in an attempt to force the concession of its 
rights. This liberal faction happened to have its greatest strength 
in America, and the committee therefore acted in the interests of 
American Whigs only. 

But there came a time when the contemplation of a series of 

''Journals, IV. 137. 

^ Ibid., II. 139, 155. They assure all the subjects of the empire that they 
" mean not in any wise to affect that union with them ". See also David Hum- 
phreys, Miscellaneous Works, 271. 

^Journals, II. 205; IV. 138. 

* See how the taking of Crown Point and Ticonderoga are explained. Ibid., 
II. 167, 171. Such was the spirit as to opening ports and allowing privateers, 
ffcirf., 201 ; IV. 231. 

Trevelyan, The American Revolution, part II., vol. I., p. 112. 

6 Journals of Congress, III. 483, 486. 

' Its work of this kind is best seen in its measures against the Tories, 
ibid., 280 ; IV. 25, 49. In this light Congress seems to be only a convention of 
delegates representing the Whig party in America, not all the American people. 
The Loyalists held this view throughout the war. 



Sovereignty in the American Revolution 535 

ministerial errors so embittered the colonists against the mother- 
country that Americans changed the banner under which they were 
fighting, and in place of liberty merely they were aiming at liberty 
and independence. They had used the word " union " and the 
expression " united colonies "' a great deal during the earlier strug- 
gle, when they simply meant united efforts for the attainment of 
concessions'- which no one colony singly could hope to wrest from 
the powerful British government. Now they continued the struggle 
for independence with the same general idea of united effort, no 
longer .of colonies, but of states independent and sovereign in all 
governmental matters, but leagued to overthrow the power of Eng- 
land, and to command the respect of other world-powers. To 
attempt united action by a clumsy system of correspondence was 
impracticable, and the Continental Congress, in which were as- 
sembled representatives of the sovereign states, was a convenient 
centre of intelligence and a source of advice which w^ould keep their 
forces united.^ As the Maryland convention expressed it, "the 
best and only proper exercise [of the powers of Congress] can 
be in adopting the wisest measures for equally securing the rights 
and liberties of each of the United States, which was the principle 
of their union."' To Congress was yielded a temporary and indefi- 
nite authority for war purposes, but its permanent relation with the 
states was to be determined by future agreement.'' 

In thus unifying the councils and action of thirteen colonies at 
first and states later. Congress did many things that seem at first 
view the acts of a national government, but an analysis of some of 
these more deceptive actions will clear our understanding of their 
character. There are instances of dissensions between colonies 
being referred to Congress to settle, but, since nothing would weaken 
the colonies' military efficiency as would intercolonial quarrels, it 

' The use of the word " colony " had significance too, and the retaining it 
showed how men clung to the idea of preserving the empire. As late as 
November, I775, Adams could not get "colony" struck out of a report though 
the committee " were as high Americans as any in the house ". Works of John 
Adams, III. 21, 22. 

2 Note the distinction in the " Declaration on Taking Arms." They assure 
all subjects " that we mean not to dissolve that Union [i. e., the national union] 
. . . which we sincerely wish to see restored," but in the same document " Our 
Union [i. e., for the purpose of getting concessions] is perfect." July 6, Journals, 
n. 154, 155. See also II. 87-88, 198, 217; III. 321, 477, 488; IV. 142, 146. 

^ Note, for example, ibid., II. 60, 74, 85, 183, 188, 189, 192, 212; III. 278, 
279, 323. 363 ; IV. 21, etc. 

* Scharf, Maryland, II. 273-277. 

' Note that North Carolina and Pennsylvania provide in their constitutions 
for delegates as long as it shall be necessary. Poore, Constitutions, North Caro- 
lina, xxxvii. ; Pennsylvania, sect. 11. 



536 C. H. Van Tyiie 

was as important for Congress to try to reconcile these differences 
as to direct the armies or provide a naval force. That this is not 
perverting the logic of such action may be plainly seen in the case 
(September 30, 1775) where Congress is asked to settle the dispute 
between Connecticut and Pennsylvania " until the matter shall be 
determined by the King and Council, to whom both sides have sub- 
mitted the dispute."^ Congress urged the people of the two colonies 
not to endanger the union, but it refused to take any measures that 
would seem an assumption of sovereignty. - 

Again, the states called upon Congress, the assembling-place of 
all of the states, to assume responsibility which the state did not 
dare assume alone, but which was necessary for the common de- 
fense.^ Again the colonies asked Congress about establishing new- 
governments,'' and much has been made of the fact that Congress 
recommended the establishment of such forms as seemed best ; but 
the advice cannot be twisted into a sovereign command, for the 
thing is to be done " during the continuance of the present dispute 
between Great Britain and the colonies." ■'' A body regarding itself 
as sovereign does not speak thus. Later, when affairs were nearer 
a climax (May 10, 1776), Congress recommended the formation of 
permanent governments, but it is noticeable diat in this case the 
states acted at their leisure,* and Maryland resented the interference 
of Congress' and refused to obey. Congress was again rebuffed 
when it ordered the committee of observation of Baltimore to seize 
Governor Eden's secretary. The committee acted without the 
authorization of the Maryland council of safety, and was severely 
reprimanded for obeying " other than those intrusted with the 
proper authority by this Province ".* Congress was constantly 
steering between the Scylla of sovereignty, and the Charybdis of 
inefficiency. 

It was in Congress that independence was resolved upon, and 

'Journals of Congress, III. 283, 287, 295, 453, 4S7. Congress evidently 
was not looked upon as having sovereign authority. 

nbid., IV. 283. 

^ New Jersey asks, June 24, 1776, about seizing Governor Franklin, ibid., 
V. 473. Sometimes the approval of Congress is asked for more selfish ends. 
Ibid., II. 25 ; III. 274. As to seizing Dunmore, there was a significant dispute. 
Ibid., 482. 

« Ibid., II. 77 ; HI- 298. 

5 Ibid., 319, 326. 

6 Delaware and Pennsylvania acted in September, 1776; Maryland in No- 
vember, 1776; North Carolina in December, 1776; Georgia in February, I777; 
New York in April, 1777. 

' Force, American Archives, fourth series, V. 1588. Note also the attitude 
of Duane, Journals of Congress, VI. 1075; and of Wilson, ibid., 1075-1076. 

^ Ibid., IV. 286; Force, American Archives, fourth series, V. 1564, 1566, 1590. 



Sovereignty in the American Revolution 537 

that, says Von Hoist, in destroying the bonds between the colonies 
and England, " threw down the walls which had hitherto pre- 
vented the political union of the thirteen colonies. They were, in 
fact, thrown together so as to constitute them one people." "^ But 
was that viewed by contemporaries as an act consolidating the sev- 
eral colonies, and by whose sanction did they regard it as taking 
effect? It was declared during the debate upon the resolution- 
" that if the delegates of any particular colony had no power to 
declare such colony independent, certain they were the others could 
not declare it for them, the colonies being as yet perfectly inde- 
pendent of each other ". Declare independence before these dele- 
gates were authorized to that end, and the middle state delegates 
" must retire " and " their colonies might secede from the union ". 

This assertion was not disputed^ and Congress waited until, with 
the exception of New York, all the delegations were instructed 
favorably or had large powers and were sure enough of subsequent 
sanction to vote for the resolution. The action of the twelve colonies 
did not bind New York until her own convention approved, and at 
least seven of the states'* showed by their subsequent resolutions 
giving to the Declaration the binding force of law within their states 
that they did not recognize the power of Congress to legislate for 
them even in a matter so vital to all as the separation from Great 
Britain. 

If there were any doubt as to what the Declaration implied when 
it said " that these United Colonies are . . . Free and Independent 
Stales ..." and " they have full Power to levy War ", etc., that 
doubt would be dispelled by reading the resolves of the state con- 
ventions or assemblies in approving the Declaration. The Pennsyl- 
vania convention passed a resolve approving, in behalf of themselves 
and their constituents, of Congress's resolution, declaring " this, as 
well as the other United States of America, free and Independent," 
and declared " before God and the world that we will support and 
maintain the freedom and independence of this and the other United 

' Von Hoist, Constitutional History of the United States, I. 8. 

'' By Wilson, Livingston, Rutledge, or Dickinson. Journals of Congress, VI. 
1088. See also Force, American Archives, fourth series, IV. 739. 

^ Indeed it was clearly affirmed in the case of Maryland. Ibid. 

' New York, ibid., fifth series, I. 1391 ; Rhode Island, Colonial Records, VII. 
581 : Connecticut, State Records, I. 3 ; Pennsylvania, Force, American Archives, 
fifth series, II. 10; Maryland, ibid., III. 88-89; also ibid., fourth series, VI. 1507; 
New Jersey, ibid., 1648; Virginia, Hazelton, The Declaration of Independence, 
2-3- 



538 C. //. ]'aii Tync 

States of America.'" The Connecticut assembly approved of the 
Declaration, and resolved " that this Colony is and of right onght to 
be a free and independent State." - The " walls " were evidently 
not down in the opinion of these contemporary state legislators and 
they thought it their sanction which gave validity to the resolution 
of independence.^ This preservation of state identity, and belief in 
the state's freedom to do its will politically, appears frequently during 
the debate on the Articles of Confederation.'' 

While discussing the land question, Wilson of Pennsylvania said 
that his state had no right to interfere in those claims, " but she has 
a right to say, that she will not confederate unless those claims are 
cut off,"' and Huntington of Virginia denied Congress the right 
to limit the hounds of his state and asserted that the consequence of 
such an attempt would be that Virginia would not enter the Con- 
federation." Witherspoon, August i, 1776, conceived of the colonies 
as individuals come together to make a bargain with each other." 
That this bargain was thought of as a treaty between sovereign 
states, there is good contemporary evidence aside from the articles 
themselves. " I daily expect the Treaty of Confederation ", wrote 
Governor Cooke of Rhode Island.' Indeed the Confederation 
seemed to some merely a league which the states formed for the 
war." If it were not formed then, Sherman feared it never would 
be formed'"; some did not see the necessity of it" even for that pur- 

> Force, American Archives, fifth series, II. lo. See also Jcunials of Con- 
gress, V. 690, where the " thirteen independent states of America " are to have 
initials on the seah 

''Records of the State of Connecticut, I. 3. 

"Significant also is Madison's assertion in 1782, that the Crown rights had 
not devolved upon Congress, an idea ." so extravagant that it could not enter into 
the thought of man." New York Historical Society Collections, 1878, p. 147. 

•• Journals of Congress, VI. 1081. These debates were after the Declaration 
of Independence, it must be remembered. Hopkins of Rhode Island asserts. 
" The safety of the whole depends upon the distinctions of Colonies." 

5 Ibid., 1077. 

6 Ibid., 10S3. Franklin thought that if all the colonies would not enter, it 
had better be formed by those inclined to it. John Adams, Works, IX. 373. 

"Journals, VI. 1103 (but see Adams's answer, 1104). Sherman thought as 
did Witherspoon. Ibid., 1081. 

* Force, American Archives, fifth series, I. 377. See also Randolph's idea, 
Madison's Writings, ed. Hunt, III. 37. 

^Journals of Congress. VI. 1079. Note the same idea in Jefferson to 
Marbbis, American Historical Review, October, 1906, p. 77. The first draft of 
the Articles of Confederation contained a clause, " The said Colonies unite them- 
selves so as never to be divided by any Act whatever," but this was early struck 
out of the draft and does not appear later. Evidently none wished to bind the 
league of friendship so firmly as this. 

'"August 25, 1777. Life of Sherman, 106. 

" Force, American Archives, fifth series, I. 672. 



Sovereignty in the Ainet'ican Revolution 539 

pose. The agreement of the states to any kind of confederation 
seemed at times ahnost desperate, and after all a league of sovereign 
states was all men would concede.^ 

The articles as finally adopted furnish us with an admirable 
measure of the depths or rather shallows of national feeling and of 
the intensity or rather weakness of the contemporary desire for a 
state. We cannot discuss the character of the Confederation here, 
but it is a common judgment among political scientists and his- 
torians that there was less national unity after its adoption than 
before it.- As Professor Burgess expresses it, "' the American 
[national] state ceased to exist in objective organization." The sub- 
jective existence, the " idea in the consciousness of the people "^ 
which he declares to have remained, is just what I believe that the 
facts here submitted show not to have existed. Though the whole 
logic of the situation seems to us now, and seemed to a few leaders, 
then, to point to the necessity of the formation of a national state, 
yet the vast majority of men refused to see it,'' and hugged the 
delusive phantom of independent and of sovereign statehood for 
each of the thirteen colonies. Individual interests might be sunk 
temporarily in order to accomplish by military union a great indi- 
vidual desire, but the affections and the impulses of obedience 
centred in the state governments. 

However dependent the states might be upon each other for 
military strength to meet the assaults of England, facts, too numer- 
ous to be gainsaid, can be cited to show the opinion of state legisla- 
tures, state conventions, and individuals in the states as to the actual 
political independence and sovereignty of the state. To mere asser- 
tions in state constitutions that the state is independent and sover- 
eign'^ we need give little attention, but powers granted in constitu- 
tional conventions and acts of sovereignty done by state governments 
have greater importance. South Carolina specifically endowed its 

• In this connection it is important to note the contemporary conception of 
a confederation. Franl<lin's plan of confederation provided for a league even 
though the colonies remained part of the British Empire. Bringing about recon- 
ciliation was one of the functions of his confederation, and of course the organ 
of united action, the Congress, could not have sovereign powers if it existed 
within the British Empire. Journals of Congress, II. 195, 198; III. 301; IV. 
149. The Rhode Island assembly instructed its delegates to promote a confedera- 
tion at a time when it would not instruct for independence. Ibid., 353. 

" Pomeroy, Von Hoist, Burgess, Lieber, et al. 

'Burgess, Political Science and Constitutional La'w, I. loi. 

'Fisher Ames, Works, I. 113. "Instead of feeling as a nation, a state is 
our country." See also Austin's Gerry, I. 407-415, quoted by Von Hoist, I. 29, 
and Rives, Madison, II. 177. 

5 Poore, Constitutions: Connecticut, I. 257; New Hampshire, II. 1281, art. 
VII. ; Massachusetts, I. 958, art. iv. 



540 C. H. Van Tyiie 

governnu'iU with the power to make war, conclude a peace, enter 
into treaties, lay embargoes, and provide an army and navy.' Other 
states specified some of these powers and implied the rest." 

That these powers were implied is proven by the exercise of 
them by the government established. Virginia ratified the treaty 
with France\ and her diplomatic activity was so great that she estab- 
lished by law a clerkship of foreign correspondence'. William Lee 
was sent to France by Governor Henry and was given power under 
the state seal to obtain arms or borrow money of " his most Chris- 
tian Majesty."^ Franklin speaks of " three several states " nego- 
tiating with France for loans and naval and war supplies." He com- 
plains that they " seem to think it my duty ... to support and 
enforce their particular demands."' In fact the states seem to have 
regarded the minister sent by Congress to be their particular minister 
as well as that of other states. Embargoes were laid* and ports 
thrown open to the world by the enactments of state legislatures,' 
sometimes at the suggestion of Congress, but often not. Patrick 
Henry, who had talked of all /Vmerica being " thrown into one 
mass " and who was not a Virginian but an American — when he was 
seeking to increase the power of Virginia in the First Continental 
Congress, by securing proportional representation — this same elo- 
quent Henry actively negotiated with Spain in 1778 for a loan and 
for the approval of Spain to the erection of a fort on Virginia's 
border, promising in return " the gratitude of this free and inde- 
pendent country, the trade in any or all of its valuable productions, 
and the friendship of its warlike inhabitants."'" The whole cor- 
respondence is in the tone of one not doubting the independence and 
sovereignty of his state. 

Besides these assumptions of sovereignty in dealing with other 

' Poore, Constitutiotts, II. 1625-1626. 

2 See ibid., Pennsylvania, II. 1545, sect. 20; North Carolina, II. 1412, .xix. ; 
Maryland, I. 825, xxxiii. ; Delaware, I. 274, 275 ; Massachusetts. I. 965. 

'See Doniol, Histoire de la Participation de la France, IV. 155. 

* Hening, Statutes. IX. 467. To be filled by a person learned in the modern 
languages. 

5 Calendar of Virginia Stale Papers, I. 328-329. Mazzei also was sent to 
Italy with a like commission. Hunt, Madison, 30. 

6 Wharton, Diplomatic Correspondence, III. 192, 153. Maryland and Vir- 
ginia are especially mentioned. 

''Ibid., 192. Later the English government was curious to know whether 
Congress or the states individually had the right to negotiate. Diplomatic Corre- 
spondence, 1783-1789, I. 574. 

^ Stale Records of Connecticut, I. 12, 63, 71. Hening, Slatiites, IX. 530. 

' \'irginia, February 16, 1776. Journals of Congress, VI. 1072. 
1" Clark MSS., vol. 58, p. 103, library of the State Historical Society of 
Wisconsin. 



Sovereignty in the American Revolnlioii 541 

nations, the states gave other proofs that they allowed Congress to 
exercise no function which they did not themselves have greater 
right to exercise. True, Congress organized a Continental navy, but 
nine of the thirteen states also fitted out navies of their own ' and 
they were able to tax their citizens for supporting the establishment, 
while Congress could only beg the states to support its navy. Nor 
were the state fleets very helpful to the Continental fleet, for as Mr. 
Paullin says-', " The commander of a state vessel or the master of a 
privateer, for aught either could see, subtended as large an angle in 
maritime affairs, as an officer of Congress, which body was to tlicm 
nebulous, uncertain, and irresolute." As to privateering some of the 
states established state privateering, while some adopted the Conti- 
nental system or adapted state laws to it.-' 

In the organizing of armies the story is the same. Congress 
could only urge the patriotic to volunteer and then bemoan its un- 
filled ranks. It must turn to the states for a support which was 
never more than half-heartedly given and see with chagrin the state 
armies filled by drafts and by tempting bounties outbidding what 
Congress could offer and in defiance of the urgent appeals of Con- 
gress to stop this ruinous rivalry.^ The sufferings of the Con- 
tmental troops at \'alley Forge were not due to the poverty of 
America, but to the fact that the states would not exert themselves 
m taxing for the army's support.'^ Not only were armies organized 
by states, but they were used for state ends, and Virginia in the 
case of the expedition of George Rogers Clark actually carried on 
war without the knowledge of Congress, at her own expense, and 
for her own aggrandizement." Much of the early war in the .South 
was carried on without the aid or advice of Congress. 

If Indian affairs were regulated by Congress, so were they b\ 
the states. Congress established post-routes, but so did little Rhode 
Island ;'' and finally we must remember that whatever acts of sover- 
eign nature Congress recommended, it was the states that enforced 
these acts— laying an embargo, sanctioning the seizure of provisions 
for the army, collecting and pledging the only revenues, raising the 

■Paullin, The Navy of the American Revolulion, 152. Rhode Island, Con- 
necticut, New York, Pennsylvania, Maryland, Virginia, North Carolina, South 
Carolina, Massachusetts. 

Ubid., 153. 

^ Ibid., 321. 

* Journals of Congress, VI. 944-946. Hening, Statutes, X. 17, 18. 

5 Yet Congress was constantly urging, .in vain and without power to compel 
this most necessary obedience. Journals, III. 458; IV, 339; and many other 
instances in the journals. See index, under Bounties, etc. 

'Hening, Statutes, IX. 552. 

' Colonial Records of Rhode Island, VII. 352. 



542 C. H. I an Tytie 

only taxes, keeping social order, protecting property, and administer- 
ing justice. 

No one was more conscious of this jealous retention of state 
sovereignty than the members of Congress themselves.' In matters 
where the interests of an individual state were seriously involved the 
opposition of the delegates of Jljat single state was enough to cause 
Congress to refrain from passing a recommendation.- If Congress 
desired in the interest of all to pry closely into the affairs of a state, 
an apology was sure to accompany the resolution.'" On committees 
to consider any important measures Congress thought it necessary to 
have one member from each colony.^ Even in the case of recal- 
citrant members of its own body, Congress was never forgetful that 
the member was there in the capacity of a diplomat from a sovereign 
state. ^ Limitations upon a delegate's instructions were also duly 
regarded" and no delegate dared make any important proposition in 
Congress without first being requested to do so by his state, in the 
form of a proposition by one sovereign state to the other sovereign 
states assembled by their delegates in Congress." 

These are only a few of the many facts which go to show the 
truth of Randolph's assertion as to Congress : " They have therefore 
no will of their own, they are a mere diplomatic body, and are always 
obsequious to the views of the states ".** John Adams, too, described 
them as " not a legislative assembly, nor a representative assembly; 
but only a diplomatic assembly."" Only in that view was it reason- 
able for each state to have but one vote in Congress.^" Because of 
the same idea in men's minds, the delegates from all the states except 

New Hampshire and Georgia were elected b\',the state legislatures, 

r -^ -o. N < • ,.:>;x^ ^ 

' Notice their attitude in regard to raising Continental troops. Journals of 
Congress, V. 470, 521. ' '"^i 

'Ibid., IV. 279; II. 125; V. 481. Sometimes the resolution was passed in 
the form of a harmless hint which the state could carry out or not. Ibid., 463 ; 
South Carolina delegates to Rutledge. 

'I Ibid., IV. 167. Sometimes it resisted appeals to interfere. Ibid., 185. 

'Ibid., III. 262, 488; IV. 76. 

^ Ibid., III. 357; and Secret Journals, April 10 and 11, 1778. 

'•Journals, VI. 1074. 

' See suggestion of army, navy, independence, etc. 

* Madison, IVrilings, ed. Hunt, III, 181. Mason had a like view. "Under 
the existing Confederacy, Congress represents the stales", etc. Ibid., 101. 
It was this fact and the rise and fall of enthusiasm for the union which handi- 
capped the work of Congress, and explains much of its so-called sloth and in- 
competence. 

^A Defence of the Constitutions of the United Stales (1787). 
1° Madison thought this reasonable only while " the Union was a federal one 
among sovereign states." Madison, Writings, ed. Hunt, III. 44. The idea was 
that " a little Colony has its all at stake as well as a great one." J. Adams, 
IVorks, II. 366. 



Sovereigiitx in the American Revolution 543 

as provided in the new state constitutions. ^^len thought of the Con- 
tinental Congress as Europeans later thought of the Congress at 
Laybach (in 1821 ) to which the members of the Holy Alliance sent 
representatives who assumed in no wise any sovereign power over 
the participating nations. Like it, Congress was an advisory body 
having no recognized sovereign power but a considerable coercive 
force exercised through the other states and due to the generally 
recognized fact that success for each depended upon the unity of all. ' 
Yet with all the pressure of a common peril to induce obedience 
to Congress, there are numerous examples of disobedience by states 
and state officials, when state interests conflicted with the general 
interest, and in such cases Congress was helpless.- '" .So long as the 
expenses were to be paid by the Continent, the Congress could direct 
the details and the results, but when the cost was to be paid by the 
state, recommendations from the Congress carried weight only so 
far as they fell in with the expediency of the local authorities."^ 
The very formation of state governments with constitutions prepared 
the way for a decline in the influence of the Congress.* The strong 
men preferred to serve in state governments rather than to serve in 
Congress,^ and on the other hand, as Hamilton pointed out, " Each 
State in order to promote its own internal government and pros- 
perity, has selected its best members to fill the offices within itself, 
and conduct its own affairs."" It is noteworthy that a recommenda- 
tion of Congress must first be approved by the state authorities be- 

' The inhabitants of Savannah express the prevalent idea. Force. American 
Archives, fourth series, II. 1544. Not to wish success of the general cause was 
" Toryism ", a stigma which neither individuals nor states cared to have fixed upon 
them. See Rush's view, Pennsylvania Magazine, XXVII. 135. 

"Connecticut and Pennsylvania. Journals of Congress, IV. 93; III. 321; 
V. 469. Note especially the famous Olmstead Case, when Pennsylvania set at 
naught a decision of the Commissioners of Congress. Congress, " not wishing to 
endanger the public peace of the United States ", proceeded no further. Jameson, 
Essays, 17-22. When a state did obey a request of the Congress which bore 
hard upon them. Congress commended them for " additional proofs of their 
meritorious attachment to the common cause." Journals of Congress, IV. 99. 
In a careful study of Maryland's relations with Congress by Mr. F. B. Keeney 
in my seminary it was shown that out of eighty resolutions of Congress asking 
Maryland to do certain things forty-five were not heeded by the Maryland con- 
vention, and in every controversy between the state and Congress the latter was 
obliged to yield. 

'Mr. Ford's preface to the Journals of Congress for 1776, p. 8. 

'Journals, IV. 8. One should note too the greater hurry and success in 
making the state constitutions, and how much more ready men were to yield 
large powers to them than to grant such to Congress in the Articles of Confed- 
eration. 

' Washington's IVrilings. ed. Sparks, V. .Appendix, 508-509. 

"Ibid., 509. 



544 C- ^- ^'^^" Tyne 

fore a state administrative officer would obey.' Finally, it is signi- 
ficant that confidence in state issues of money exceeded that in the 
Continental bills, indicating a firmer belief in the perpetuity of the 
states than in the Congress. 

I"p to this point we have been studying historically the ideas 
which men had during the American Revolution as to the nature of 
Congress, the state governments, and the powers of each. If the 
ideas and wishes of men were what the submitted facts and 
arguments seem to show, there could have been no common will 
demanding the creation of a national state. But this is the assertion 
made by the exponents of the sovereign Congress. A consciousness 
of nationality no doubt there was, because geographical position, 
laws, manners, history, and prevailing language" all combined to 
that end, but it is a mistake to confuse the idea of nationality with 
that of the state. National consciousness may exist, as it did in the 
minds of the people of Germany and Italy, before a national state 
was created. The people dwelling in the loosely confederated states 
of Germany before 1866 were people of the same race;' their eco- 
nomic interests were quite as unified as were those of America in 
1776, and their several governments were alike in character, but 
Genr.any had no central government endowed with sovereign 
powers, and there was no common will demanding the creation of a 
national state. This I conceive to have been the condition in 
America until the trying experiences of the period of the Confedera- 
tion'' taught a majority of Americans, what a few had long seen, that 
the whole logic of the situation demanded the creation of a national 
state. Even then it was only with a grudging hand that the essen- 
tials of sovereignty were granted to the government created by the 
Federal Constitution, and in so dubious a manner, that men have dis- 
puted ever since as to whether a national state actually did then come 
into existence. 

After all has been said for the view here maintained, there still 
remain some vexing facts, and some utterances of contemporaries 
hard to reconcile.'' Most of these will be explained, however, if we 

^Provincial Papers of New Hampshire, VII. 512. Journals of Congress, 
IV. 285-286. 

^ Giddings, Descriptive and Historical Sociology, 295. 

3 Their race elements were more unified than those of America. 

* Added of course to the lessons in unity learned in the Revolutionary army. 
and the fact that America's isolation from the rest of the world must have given 
citizens of the several states thoughts of a common destiny. 

5 Wilson, in Journals of Congress, VI. 1105. Rush, ibid., 1081. It is to be 
noted that the large-state men urged the new idea of a national state most 
strongly, because it was an argument in favor of proportional representation. 



Sovereignty in the American Revohition 545 

reflect that there had to be a dawn of the idea of a national state 
and Its hght naturally touched the highest peaks first— the men 
capable of noble conceptions— men like Bismarck in Germany or 
Cavour in Italy— Washington, Hamilton. Wilson, and Madison,' and 
It IS m their writings and acts that we find the most advanced views 
of the powers of Congress. 

Claude H. Van Tyne. 



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